951 F.Supp. 267 (D.D.C. 1997), C. A. 93-1754, American Min. Congress v. United States Army Corps of Engineers

Docket Nº:C. A. 93-1754
Citation:951 F.Supp. 267
Party Name:American Min. Congress v. United States Army Corps of Engineers
Case Date:January 23, 1997
Court:United States District Courts, District of Columbia

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951 F.Supp. 267 (D.D.C. 1997)




National Wildlife Federation, et al., Defendant-Intervenors.

Civil Action No. 93-1754 SSH.

United States District Court, District of Columbia.

Jan. 23, 1997

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Albert J. Beveridge, III, David Gary Isaacs, Thomas C. Jackson, Virginia S. Albrecht, Beveridge & Diamond, Washington, DC, for American Mining Congress/American Road & Transp. Builders Assoc./National Aggregates Assoc./ Nat'l Assoc. of Home Builders.

Alice Love Mattice, DOJ, Environment & Natural Resources Div., Washington, DC, for U.S. Army Corps of Engineers/Edward Dickey, Acting Assist. Sec. of Army for Civil Works/Arthur E. Williams, Chief of Engineers/Environmental Protection Agency.

Howard I. Fox, Sierra Club Legal Defense Fund, Washington, DC, for National Wildlife Federation/North Carolina Wildlife Federation/Nat'l Audubon Society/Sierra Club.

Ronald A. Zumbrun, Pacific Legal Foundation, Washington, DC, for Fairness to Landowners/Pacific Legal Foundation C'ee/National Associat of Flood and Stormwater Mgt.--movant.

Paul Douglas Kamenar, Washington Legal Foundation, Washington, DC, for Washington Legal Foundation--amicus.


STANLEY S. HARRIS, District Judge.

This matter is before the Court on plaintiffs' motion for summary judgment, defendant-intervenors' motion for summary judgment, defendants' cross-motion for summary judgment, the parties' replies thereto, and plaintiffs' and defendants' submissions of supplemental authority. The Court also has considered the amicus curiae briefs filed by the National Association of Flood and Stormwater Management Agencies, the Fairness to Landowners Committee and the Pacific

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Legal Foundation, the Washington Legal Foundation, and a coalition of the Nationwide Public Projects Coalition, the Metropolitan Water Providers and Participants of Greater Denver, the City of Colorado Springs, Colorado, and the New England Water Works Association. 1 Upon consideration of the entire record, the Court grants summary judgment to plaintiffs and denies summary judgment to defendants and defendant-intervenors. Although "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed.R.Civ.P. 52(a), the Court, having analyzed the parties' submissions so carefully, nonetheless sets forth its analysis.


Congress passed § 404 of the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. § 1344, in 1972, authorizing the United States Army Corps of Engineers (the "Corps") to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). Pursuant to this authority, the Corps and the United States Environmental Protection Agency (the "EPA") (collectively, "the agencies") adopted regulations and issued guidance documents that have regulated the disposal of dredged materials in waters. 2 Until the rule at issue here became effective, however, the agencies did not regulate under § 404 excavation activities that involved the removal of material from waters, such as landclearing, ditching, and channelization, even if those activities might have adversely impacted wetlands or waters. Under the instant rule, the agencies now regulate removal activities because they consider the "incidental fallback" that accompanies dredging to be a "discharge" under § 404.

The rule, referred to as the Tulloch rule, is an outgrowth of a settlement agreement in North Carolina Wildlife Federation v. Tulloch, Civil No. C90-713-CIV-5-BO (E.D.N.C.). In that case, a North Carolina developer used sophisticated techniques, such as welding shut openings in equipment to prevent more than incidental fallback, and using dump trucks to transport soil removed by backhoes, to develop 700 acres of wetlands without a § 404 permit. Environmental groups sued the Corps, the EPA, and two landowners, alleging that those landclearing and excavation activities destroyed and degraded wetlands and therefore should be subject to regulation under § 404. The agencies settled the case by agreeing, in relevant part, to revise:

The term "discharge of dredged material" [to] include[ ], without limitation, any addition or redeposit of dredged materials, including excavated materials, into waters of the United States which is incidental to any activity (except normal dredging operations as defined below), including mechanized landclearing, ditching, channelization, or other excavation, which has or would have the effect of destroying or degrading any area of waters of the United States. The term does not include de minimis soil movement incidental to any activity which does not have or would not have the effect of destroying or degrading any area of waters of the United States. Moreover, the term does not include de minimis incidental soil movement occurring during normal dredging operations, defined as dredging to maintain, deepen, or extend navigation channels in the navigable waters of the United States, as defined in 33 C.F.R. Part 329, with proper authorization from the Congress/and or the Corps.

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Pls.' Br. in Support of Their Mot. for Summ.J.Ex. A, Settlement Agreement at 3 (underlining omitted). Pursuant to this agreement, the agencies proposed the rule and, after a 60-day comment period, adopted a final rule that mirrors the language in the settlement agreement. 3

Under this new rule, the agencies have redefined the term "discharge of dredged material" to include small-volume incidental fallback. 33 C.F.R. § 323.2(d)(1)(iii) (Corps regulations) and 40 C.F.R. § 232.2(1)(iii) (EPA regulations). Incidental fallback is the incidental soil movement from excavation, such as the soil that is disturbed when dirt is shoveled, or the back-spill that comes off a bucket and falls back into the same place from which it was removed. 4 Because incidental fallback is almost always associated with excavation and land clearing, and because this soil movement is considered a discharge, a § 404 permit is now required for mechanized landclearing, ditching, channelization, or other excavation.

The Tulloch rule altered the agencies' previous policy to focus on the environmental effect of the activity resulting in the discharge, rather than on the size of the discharge. It creates a rebuttable presumption that shifts the burden to the regulated party to show, prior to commencing the project, that the federal government does not have jurisdiction over the activity. 33 C.F.R. § 323.2(d)(3)(i) and 40 C.F.R. § 232.2(3)(i). In order to show that the activity does not fall under § 404, the party must show that the activity associated with the discharge has de minimis environmental effects. Id.

Plaintiffs challenge the Tulloch rule on four grounds, contending that the rule (1) is inconsistent with the language and intent of the CWA; (2) is arbitrary, capricious, and otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., because it exempts navigational dredging, which is generally done by the Corps, and exempts landclearing from a grandfather clause; (3) violates plaintiffs' due process rights under the Fifth Amendment to the Constitution because it (a) is vague, and (b) shifts to regulated parties the burden of showing that their activities are not covered; and (4) was promulgated in violation of the procedural requirements of the APA. Defendants and intervenor-defendants counter these arguments in their motions for summary judgment and contend that the rule merely closes a nearly 20-year-old "loophole" in the Act. Because the Court grants summary judgment to plaintiffs on the ground that the Tulloch rule is inconsistent with the language and intent of the Act, the Court does not address the remainder of the parties' claims.

Summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Because the issues raised by the present motions

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concern only questions of law, this matter is appropriate for resolution on summary judgment.

The parties frame the case differently. Plaintiffs contend that Congress never intended for incidental fallback to be within the ambit of § 404. They contend that the Act was crafted to regulate the disposal of dredged soil in waters, but that the Tulloch rule extends federal regulation to the act of removing material from waters. They view the concept of "incidental fallback" as creating a jurisdictional hook by which the agencies can regulate excavation and landclearing activities that are otherwise not within the scope of the § 404 permit program.

The agencies contend that they are empowered to regulate incidental fallback and that the Court must defer to their expertise. They contend that such fallback has always been regulated but has been excepted from the permit requirement pursuant to a narrow exception for de minimis discharges. They contend that the Tulloch rule merely closes a loophole in the Act, thus effectuating the goals of the Act, and argue that the agencies have appropriately applied their de minimis authority. 5

Standard of Review

In evaluating the parties' arguments, the Court follows the rules laid down in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). First, the Court looks to "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for...

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